(dissenting).
I respectfully dissent for the following reasons:
The terms of the statute under which the taxes were collected from plaintiffs are clear and unambiguous. When Congress used the words “there shall be imposed upon the amount paid within the United States * * *,” it is susceptible of only one meaning. In the absence of ambiguity, courts cannot go behind the act in order to give it another and different meaning. The interpretive ruling of the Commissioner, dated December 7, 1942, wherein he stated:
“The tax does not apply to the amount paid for the transportation of property * * * (c) when paid outside the United States, regardless of where the transportation occurs ;1 ”
was consistent with the regulations promulgated by the Commissioner in 1943. The pertinent portions of such regulations are as follows:
“Reg. 113, Sec. 143.11. Scope of Tax. — Section 3475(a) imposes a *391tax upon amounts paid within the United States after December 1, 1942, to a person engaged in the business of transporting property for hire, for transportation, originating on or after such date, of property by rail, motor vehicle, water, or air from one point in the United States to another.
“Reg. 113, See. 143.13. Application of Tax. * * * The tax applies to the total amount paid within the United States for transportation of property from one point in the United States to another even though while enroute part of the transportation movement is through a foreign country.”
The Commissioner’s regulations, adopted to conform with the 1950 amendment of the taxing statute, expressly recognized that the tax applies to amounts paid without the United States only on and after November 1, 1950, the effective date of the 1950 amendment. These regulations provide as follows:
“Scope of Tax. Section 3475(a) imposes a tax upon (a) amounts paid within the United States after December 1,1942, for transportation originating on or after such date, of property by rail, motor vehicle, water, or air from one point in the United States to another, and (b) amounts paid without the United States, on or after November 1, 1950, for transportation originating on or after such date; of property by rail, motor vehicle, water, or air from one point in the United States to another. The tax applies only to amounts paid to a person engaged in the business of transporting property for hire. [1951-1 Cum.Bull. 148, 149.]
* * * -X- # *
“With respect to amounts paid within the United States, the tax applies only to amounts paid after December 1,1942, for transportation which originated on or after such date. * * *
“With respect to amounts paid without the United States, the tax applies to amounts paid on or after November 1, 1950, for transportation originating on or after that date.”
The Supreme Court, in the case of Gould v. Gould, 245 U.S. 151, 153, 38 S.Ct. 53, 62 L.Ed. 211, said:
“In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out.”
In a more recent case of United States v. Olympic Radio and Television, Inc., 1955, 349 U.S. 232, 75 S.Ct. 733, 736, the Supreme Court said: “* * * We can only take the Code as we find it and give it as great an internal symmetry and consistency as its words permit.”
Why Congress employed the words “paid within the United States,” we do not know. It may have been because Canada also had a similar tax until 1949 when it was repealed. While the Canadian tax was in effect, there could have been no tax avoidance reason for a shipper of merchandise within the United States to physically pay the transportation cost in Canada. Upon repeal of the Canadian tax, it became possible for shippers to avoid the United States excise tax by payment in Canada. Congress recognized this loophole and closed it shortly thereafter by amending this statute.
The physical delivery of the cashiers’ checks was clearly payment without the United States within the meaning of section 3475(a) of the Internal Revenue Code. ■
I would permit plaintiffs to recover.
1VLADDEN, Judge, joins in the foregoing dissent.
. Mim. 5447, December 7, 1942, 1942-2 Cumulative Bulletin 280.